From Telephone Unbundling to Digital Bottlenecks: The Telecommunications Act of 1996, Antitrust Enforcement, and a Function-Specific Access Regime

Review

George Skouras uses the Telecommunications Act of 1996 as an institutional precedent rather than a causal explanation for contemporary platform dominance. The paper argues that communications law once converted control over an essential route to market into affirmative duties of interconnection, unbundling, collocation, pricing discipline, arbitration, and supervision, while digital intermediaries were left primarily to private contract and ex post antitrust enforcement. Its central governance claim is therefore about remedial architecture: when a firm controls a durable gateway on which competitors depend, competition policy may require an operating regime rather than occasional findings of unlawful conduct.

The proposed Digital Bottleneck Access Act makes that claim unusually concrete. Designation would attach to a specific Covered Bottleneck Function rather than to an enterprise as a whole, and would require scale plus findings of durable market power, route-to-market dependence, switching friction, and interoperability barriers. Once designated, the function could face API interoperability, non-discriminatory technical execution, fee protections, and data portability duties, subject to security, privacy, and expressive-curation defenses. The paper also refuses two shortcuts that weaken many platform-regulation proposals. It does not claim that the 1996 Act created modern monopolies, and it does not treat every high take-rate or dependency metric as proof of foreclosure. Its Gatekeeper Dependency Index, switching-friction coefficient, cross-side elasticity, take-rate measure, and difference-in-differences design are presented as evidence inputs whose thresholds still require validation.

That evidentiary discipline matters because the paper's real innovation is not the proposition that gatekeepers can exclude rivals. It is the attempt to connect designation, technical obligation, economic evidence, and constitutional limits inside one statutory model. The distinction between expressive curation and technical or commercial routing is also handled more carefully than a simple speech-versus-conduct binary: the paper acknowledges hybrid functions and preserves as-applied First Amendment review.

The unresolved question is institutional execution. The proposed Digital Markets Bureau would acquire substantial authority to designate bottleneck functions, interpret technical parity, supervise interoperability, judge security defenses, assess fee structures, and maintain remedies as software and markets change. The paper specifies the triggers for that authority more fully than the procedures that constrain it. It says less about evidentiary disclosure, participation rights, appeal timing, independent technical audit, standard-setting governance, regulator capture, budget and staffing requirements, or how conflicting privacy, security, and competition claims would be resolved in practice. These are not peripheral implementation details because the proposal's advantage over antitrust is precisely continuous supervision.

The strongest response is that this is a legislative architecture, not a finished statute or agency manual. The paper already narrows designation, requires reviewable findings, preserves defenses, and cautions that its quantitative thresholds are illustrative. That answer resolves the criticism that every procedural rule must appear here, but not the larger claim of administrability. To establish that claim, the next step is an institutional prototype: a worked designation proceeding for one function, with evidence rules, technical metrics, adversarial challenge, audit obligations, review deadlines, remedy revision, and exit criteria. Until then, the paper establishes a credible governance design for function-specific access, but not yet the institutional machinery that would keep that design contestable and technically enforceable over time.

Key Insight

Digital bottleneck regulation becomes governable only when access duties are attached to specific functions, backed by reviewable designation evidence, and supervised by institutions capable of enforcing technical terms over time.